Mr Damien O'Connor

[2017] FWC 3398

[2017] FWC 3398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Mr Damien O'Connor
(C2017/1632)

COMMISSIONER BOOTH BRISBANE, 11 JULY 2017

Application made under s.603

[1] Mr Damien O’Connor made application under s.603 of the Fair Work Act 2009 (“Act”).The application concerns two previous decisions of the Fair Work Commission (the Commission). The first was a decision dismissing his application for unfair dismissal relief (“Original Decision”). 1 The second was a decision of a Full Bench refusing permission to appeal the Original Decision (“Appeal Decision”).2 The further amended application, discussed below, sought revocation of those decisions, seeking leave for a further appeal before a fresh Full Bench.

Relevant background

[2] In March 2017 Mr Paul O’Connor, (the Applicant’s father) wrote to Ross J, President of this Commission. The correspondence was entitled “Request for Remedy of a Falsified Record”. The letter sought, among other matters, correction of the reference in the Original Decision about a support person attendance at certain meetings (“support person reference”). In the correspondence Mr Paul O’Connor complained that the Original Decision was not correct where it stated that the Applicant’s father, Mr Paul O’Connor, attended a meeting on 29 September 2015 as support person. 3

[3] His Honour advised Mr O’Connor to apply under s.603 to vary the decision to remove the information he considered to be erroneous. As well, His Honour referred to the Commission’s website concerning s.603 noting the very limited circumstances in which the Commission has made such an order.

[4] An application was then made on 27 March 2017. His Honour referred the application to me for determination.

[5] Parties were invited to file any additional materials by 2 May 2017. Mr O’Connor sought, and was granted, extensions first to 19 May 2017, then to 26 May 2017.

[6] Mr O’Connor filed an amended application and a further amended application (correcting typographical errors).

[7] Crown Equipment Pty Ltd (“Crown”), Mr O’Connor’s former employer, filed submissions seeking dismissal of the application. Mr O’Connor filed his response rejecting Crown’s response “outright” as “irrelevant to the current s.603 application.”

[8] The application has been decided on the papers on the material before the Commission. This includes the correspondence to the President referred to above.

[9] Mr O’Connor’s dismissal followed investigations into his conduct and several meetings, the most important taking place on 25 June 2015; 16 September 2015; and 29 September 2015.

[10] The further amended application is “in respect of” the Original Decision and the Appeal Decision, and seeks both “leave to appeal to a greenfield Full Bench” and permission to adduce new evidence. Mr O’Connor states the relief sought as follows:

“4. Mr O’Connor is aggrieved by both the Decision of the Commissioner and the

Appeal Decision of the Original Full Bench … and is ultimately and respectfully seeking, as far as practicable or possible, an order OR finding OR determination OR variation OR revocation OR other decision, that allows him permission to appeal against Commissioner Booth’s Decision, to a Full Bench, at the Fair Work Commission, for a genuine, thorough and impartial opportunity to prosecute his unfair dismissal claim.”

[11] The grounds for relief are:

a) Demonstrated bias relating to the support person reference; and

b) Accusation of apprehended bias on my part; and

c) New evidence.

Support person reference

[12] The support person reference is relevant because of the requirement set out in s.387(d) about matters the Commission must take into account in considering if a dismissal was harsh, unjust or unreasonable. That paragraph reads: “(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”.

[13] On that consideration, the Original Decision concluded at paragraph [132]: “Crown did not unreasonably refuse to allow Mr O’Connor a support person.”

[14] Mr O’Connor does not take issue with that conclusion. His issue is about the identity of the support person at one particular meeting. In particular, the references to Mr Paul O’Connor at paragraphs [13], [16] and [131].

[15] A review of the evidence shows that Mr O’Connor was assisted at the third meeting on 29 September 2015 by a support person, but the person’s identity is not established. However it seems the individual was female. 4 Oral evidence was also given to the effect that Mr Paul O’Connor was not involved in the 29 September meeting.5

[16] It is apparent that the Original Decision has an error on its face concerning the identity of the support person. A correction of the error will issue under s.603(2)(a) of the Act and is detailed at the conclusion of this decision.

[17] Crown’s submissions are summarised in the final paragraph of its submissions:

“The Applicant continues in his failure to establish any genuine error of law, or provide any legitimate reason for why the remedies he is seeking are in any way worthy of consideration by the Fair Work Commission, and as such, the Respondent respectfully seeks that the Applicant’s application be dismissed.”

Bias

[18] Mr O’Connor suggests that I was biased in making the Original Decision. I turn to this suggestion in regard to both the Original Decision and as to whether I should determine the matter as referred to me by the President.

[19] The accusation of bias is effectively an attempt to re-litigate issues already determined and unsuccessfully appealed.

[20] The leading case of Ebner v Official Trustee, clearly establishes that judges, and by analogy, members of this Commission, 6 must determine matters unless there is a proper basis to refuse to do so:

19. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 7

[21] In the same case, Gaudron J noted at paragraph 83:

83. It is not in doubt that the requirement that courts be and appear to be impartial dictates the result that a judge is disqualified by actual bias and, also, by the appearance of bias. The test in this country with respect to the appearance of bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [he or she] is required to decide. 8

[22] The mere assertion after the fact by Mr O’Connor that the Commission was prejudiced against him does not establish bias, actual or apparent. Further, Mr O’Connor’s assertion 9 of pre-judgement arising from directions hearings is unsupported by evidence. Relevantly, the Full Court of the Federal Court of Australia in ResMed Limited v Australian Manufacturing Workers’ Union noted:

28. The fact that the matters about which legal opinions have already been expressed may not arise for consideration, or be determinative, raises a question about whether the proceedings in this Court are premature. If the proceedings before the FWC were to be determined in a way which revealed an unthinking or predisposed application of earlier expressions of opinion despite, or regardless of, the facts and arguments in the later proceedings, that might afford grounds for judicial review but a significantly high threshold must necessarily be crossed in asking this Court, before the hearing of the applications, to prohibit a member of the FWC from discharging responsibilities assigned to that member by the President upon the ground of apprehended bias. It is to an application of that kind that attention must at present be given and that application need not wait for determination on its present merits.

29. As part of their duties when discharging their statutory responsibilities, members of the FWC are often required to form an opinion about legal issues. They are entitled to act on that opinion where it is relevant to the matters they are considering or deciding, although any findings made or opinion expressed about such matters will not be legally binding on the parties to proceedings in which they are made or expressed. 10

[23] Further Mr O’Connor affirms at page 6 of his further amended application that the suggestion of bias, based in that application on the support person reference, is personal to him. After offering his negative opinion of the Original Decision, he states:

“A reasonable lay person would agree and Mr O’Connor has no trust or confidence in the Commissioner and her Decision.”

[24] Disagreement with a decision or deflated confidence after an adverse finding cannot on its own demonstrate apprehended or actual bias.

[25] Mr O’Connor has not established that the Original Decision was affected by actual or apprehended bias nor that there is any proper basis on which I should refuse to determine the present application.

The s.603 application – remedy sought

[26] Mr O’Connor’s application formally seeks leave to appeal to a “greenfield Full Bench”.

[27] The Appeal Decision refused leave to appeal on the basis that Mr O’Connor did not demonstrate error on my part in the Original Decision, and there was no public interest basis for the appeal.

[28] Mr O’Connor did not proceed to challenge the Appeal Decision in the Federal Court.

[29] There is no right to appeal a decision of a Full Bench to the Commission itself: s.604(1)(a). It follows that Mr O’Connor’s application for a fresh appeal requires revocation of the Appeal Decision.

[30] The Original Decision dismissed the application on the basis that the dismissal was not harsh, unjust or unreasonable. The Appeal Decision refused permission to appeal, the Full Bench saying:

[13] In this case we do not consider that the appeal grounds which Mr O’Connor wishes to agitate are sufficiently arguable to sustain the grant of permission to appeal in the public interest. We consider that the Commissioner determined the application before her in accordance with the statutory test of whether the dismissal was harsh, unjust or unreasonable, and in doing so had regard to all the matters she was required to take into account under s.387 of the FW Act.

[14] Although Mr O’Connor was able to identify a small number of factual errors in the Decision, they were all errors about peripheral matters which could not have had any bearing on the outcome of the matter. There was no appealable error identified in relation to the critical issue of fact, namely Mr O’Connor’s behaviour towards Mr Linnane in the carpark on 16 September 2015. That is, to the extent that the appeal was based on questions of fact, it was not made on the basis of any identifiable significant error of fact as required by s.400(2).

[15] Having considered all the evidence before her the Commissioner preferred the evidence of Crown and found that on the balance of probabilities the conduct had occurred. The conduct on the part of Mr O’Connor which the Commissioner found had occurred and which formed the reason for the termination of his employment by Crown was reasonably capable of being assessed as constituting a valid reason for his dismissal for the purposes of s.387(a). The gravity of Mr O’Connor’s aggressive and argumentative behaviour in the workplace was necessarily elevated because it occurred in the face of a previous written warning in respect of such behaviour, and this was properly taken into account by the Commissioner. Mr O’Connor’s conduct did not become excusable merely because it occurred in the context of his pursuit of a more family-friendly work roster. We therefore do not consider that Mr O’Connor has demonstrated any arguable case of error in respect of the approach taken by the Commissioner under s.387(a).

[16] As stated earlier, the Commissioner in her consideration under s.387(h) weighed Mr O’Connor’s conduct against the length of his service with Crown, took into account the economic and personal consequences for Mr O’Connor of the dismissal, and his submission that the dismissal was motivated by his WorkCover claim and/or his family responsibilities. The Commissioner’s ultimate conclusion, was that she was not satisfied that the dismissal was harsh, unjust or unreasonable. We do not consider that this conclusion was unreasonable or manifested any injustice.

[17] There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest. We are not satisfied that Mr O’Connor has demonstrated any error on the part of the Commissioner in determining that his unfair dismissal remedy application be dismissed. 11[footnotes omitted]

[31] Mr O’Connor also seeks leave to put in new evidence of two types.

[32] The first is medical evidence which the application states that he intends to introduce into evidence at a later date.

[33] The second is in relation to phone records which the application states he will seek to have them admitted at a future hearing.

[34] The type of hearing that Mr O’Connor’s application seeks under s.603 is a “greenfield Full Bench”.

Is this type of relief available under s.603?

[35] In explaining the type of relief available under s.603, as well as the limitations of the section, Ross J stated in Application by Grabovsky:

[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?

[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.

[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.

[40] In the matters before me the Applicant seeks the variation of four decisions (Decisions 1, 3, 4 and 5). Application 1 seeks to vary the decision of Deputy President Booth and the subsequent appeal such that the workload dispute may be the subject of arbitration. It will be recalled that on appeal the Full Bench determined that the Deputy President had correctly interpreted the relevant clauses of the Agreement and had correctly determined that there was no power in the Commission to arbitrate with respect to the workload issue. In essence the Applicant asks that I overturn the Full Bench decision on the basis that it was wrongly decided. In addition to the original grounds of appeal the Applicant seeks to agitate two additional grounds.

[41] I am not persuaded that s.603(1) provides the requisite power to grant the relief sought. The Act establishes a process whereby a person aggrieved by a decision may appeal the decision, with the permission of the Commission (s.604). Appeals must be determined by a Full Bench (s.613). As a general proposition that where a particular procedure is designated to achieve something other procedures are impliedly excluded, as reflected in the maxim expressum facit cessare tacitum.

[42] The maxim was applied in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia, in which Gavan Duffy CJ and Dixon J said:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

[43] Similarly, in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (Wallis) Dixon J said (at 550):

“[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.”

[44] In Wallis the Court held that a section of an act that indicated the manner in which an arbitrator was to deal with a particular issue precluded the arbitrator dealing with that matter in accordance with more general procedures provided for in that act.

[45] Acceding to the Applicant’s applications would undermine the statutory appeal process and would be inconsistent with the public interest that there be finality in litigation. In my view the apparent scope of the power in s.603(1) must be construed such that it does not permit a single Member to vary or revoke an appeal decision by a Full Bench. Absent such a limitation a Member whose decision was overturned on appeal could act on their own motion (pursuant to s.603(2)(a)), or on the application of the respondent to the appeal (pursuant to s.603(2)(b)(i)), and vary or revoke the appeal decision. Such an outcome cannot have been intended by the legislature.( My emphasis)

[46] In the event that I am wrong about the scope of the power in s.603(1) and that it is in fact broad enough to encompass a variation of the type sought, I would decline to exercise the discretion to vary the relevant decisions for the reasons expressed in paragraph [45] above.

[47] Application 2 seeks to vary the decision of Vice President Hatcher (Decision 4) and the decision of the Full Bench dealing with the appeal from Vice President Lawler’s decision (Decision 5). For the reasons given in respect of Application 1, I am not persuaded that s.603(1) provides the requisite power to grant the relief sought in relation to Decision 5; alternatively I would decline to exercise the discretion to vary the decision for the reasons set out at paragraph [45] above. 12[references omitted] 13

[36] The matters raised in the further amended application, including permission to allow new evidence and leave to appeal to a greenfield Full Bench, do not attract the requisite qualities referred to by His Honour. In particular, for the reasons stated in Grabovsky at paragraph [45] acceding to the Mr O’Connor’s request would undermine the statutory appeal process and be inconsistent with the public interest that there be finality in litigation. Further, this is not a case in which the discretion would be exercised to revoke either the Original or the Appeal Decision. It necessarily follows that no re-hearing would be ordered either before a single member or a Full Bench however constituted.

[37] The application is dismissed.

Correction at Commission’s own initiative

[38] As to the support person reference, it is apparent that the Original Decision has an error on its face. A corrected decision will issue that remedies this error under s.603(2)(a) on the Commission’s own initiative.

[39] To remove doubt, correction to remedy the error as to the identity of the support person at the 29 September meeting has no effect on the substantive conclusion that “Crown did not unreasonably refuse to allow Mr O’Connor a support person”.

[40] Correction to Decision will issue correcting the Original Decision in paragraphs [13], [16] and [131].

Amendments to Original Decision

Note re variation

[41] The Original Decision is corrected by PR594452 to change references in paragraphs [13], 16] and [131] to the identity of the support person at one particular meeting.

[42] Replace paragraphs as follows:-

[13] Mr O’Connor elected to meet on 29 September 2015 with a support person. Mr O’Connor denied that the conduct took place as alleged. There were two short recesses during the meeting for the parties to consider the allegations and responses. Mr O'Connor denied almost all the allegations and sought further details.

[16] Mr O’Connor provided sworn statements, which included responses to the statements and submissions of Crown. Mr Paul O’Connor, the applicant’s father, who acted as his support person at part of one meeting, provided evidence and other materials. Mr O’Connor also filed with his application a large amount of other documentation.

[131] The applicant attended the meeting with a support person.

ORIGINALS READ AS BELOW WITH MARK UP

[13]Mr O’Connor elected to meet on 29 September 2015 with a support person the support of his father. Mr O’Connor denied that the conduct took place as alleged. There were two short recesses during the meeting for the parties to consider the allegations and responses. Mr O'Connor denied almost all the allegations and sought further details.

[16] Mr O’Connor provided sworn statements, which included responses to the statements and submissions of Crown. Mr Paul O’Connor, the applicant’s father, who acted as his support person at the two meetings part of one meeting, provided evidence and other materials. Mr O’Connor also filed with his application a large amount of other documentation.

[131]The applicant attended the meeting with his father, a person experienced in industrial relations and employment matters, as a support person.

COMMISSIONER

 1   [2016] FWC 5719

 2   [2016] FWCFB 7205

 3   Original Decision at paragraphs [13], [16] and [131].

 4   e.g. Respondent’s Outline of Arguments at paragraph 50; Statement of Mr Ferguson dated 8/2/2016 at paragraph 32. Exhibit 23 Mr O’Connor’s response to Mr Ferguson’s statement at paragraph 32 states “Agree”. Mr Grogan’s statement of 8/2/2016 refers to a support person but does not state gender at paragraph 7.

 5   Transcript dated 17 May 2016 at PN568-PN569.

 6   see ResMed Limited v Australian Manufacturing Workers’ Union [2015] FCAFC 106; Isbester v Knox City Council [2015] HCA 20; (2015) 89 ALJR 609 at paragraph 22 per Kiefel, Bell, Gageler, Keane and Nettle JJ.

 7 (2000) 205 CLR 337, 348, Gleeson CJ, McHugh, Gummow and Hayne JJ.

 8   Footnotes omitted.

 9 at paragraph 7 in the original and amended s.603 application, but not repeated in the further amended application.

 10 [2015] FCAFC 106

 11   [2016] FWCFB 7205

 12   [2015] FWC 5161

 13   See also Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division - New South Wales Postal and Telecommunications Branch [2016] FWC 8731, Ross J, at paragraphs [27]-[32].

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